United States District Court, San Francisco, CA—The Honorable William H. Alsup determined late yesterday that the Bush Administration’s on-going failure to comply with the law and protect critical habitats for Right Whales in the North Pacific Ocean is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Judge Alsup ordered the administration to comply with the law by publishing proposed critical habitat protections within four months.

The strongly-worded opinion and order is a substantial victory for Right Whale conservation, scientists, and conservationists who submitted an Endangered Species Act petition to protect the whale’s critical habitat in 2000. “The Right Whale was nearly hunted to extinction, and so it is our shared responsibility to insure that this species survives,” said Brent Plater of the Center for Biological Diversity, author of the original petition and co-counsel with Eric Glitzenstein of Meyer, Glitzenstein, and Crystal in the lawsuit. “We owe it to future generations to protect this special creature, and the judge recognized that one of the most effective ways to do that is to protect the places the whales call home.”

The opinion explains that protecting an endangered species’ critical habitats is “[o]f equal or more importance” than protecting the species itself, and requires the Bush Administration to give “the benefit of the doubt” to the right whale in establishing these protected areas. The opinion explains that because “[n]o critical habitat will ever be knowable with geographic exactitude,” the administration must use the facts currently available to protect the Right Whales’ habitats and cannot “punt[] by calling for more study.”

The North Pacific Right Whale is so rare that in the 1980s a sighting of a single individual was deemed worthy of publication in scientific journals. However, beginning in 1996 scientists began to see a congregation of Right Whales annually in the Bering Sea, and this past year scientists have found more Right Whales in this area than were found in the previous five years.

In light of these remarkable sightings, in 2000 the Center for Biological Diversity formally requested that NMFS protect the Right Whale’s “critical habitat” as required by the federal Endangered Species Act. However, NMFS refused to protect any habitat for the whale, even though the species’ critical summertime habitats had been found. The Center then requested that NMFS reconsider its determination, but the agency never responded to any of the Center’s requests. The Center was thus left with no choice but to initiate litigation in late 2004 to insure that the Right Whale’s recovery was not impeded.

The opinion found the administration’s ongoing delay tactics subsequent to the petition to be particularly egregious in light of the status of the Right Whale, explaining that because “there are a few precious right whales left in the Pacific and even fewer females, delay—of any length of time—brings the species closer to extinction.” This is particularly true, the Court found, when “the best available evidence supports critical habitat designation.”

The Center for Biological Diversity is a non-profit conservation organization that protects endangered species and wild places through science, policy, education, and environmental law.

Meyer, Glitzenstein and Crystal is a public-interest law firm in Washington D.C. that specializes in litigation under the Endangered Species Act and other environmental and animal protection laws.